Luongo v. Pa. State Police

156 F.Supp.3d 599

Stephen B. Luongo and Steve Luongo's Towing, Inc., Plaintiffs,

v.Pennsylvania State Police, Tomas Yates, Louis G. Vitali, James P. Raykovitz, Robert Reilly, Justin Lanza, Derrick Watford and Eric J. Turk, Defendants.

CIVIL ACTION NO.15-4087

United States District Court, E.D. Pennsylvania.

Signed January 11, 2016

Frank G. Murphy, Arthur R. Armstrong, Anderson Kill P.C., Philadelphia, PA, for Plaintiffs.

Sue Ann Unger, Office of Attorney General, Philadelphia, PA, for Defendants.

MEMORANDUM

BUCKWALTER, District Judge

Currently pending before the Court is the Motion to Dismiss by Defendants Pennsylvania State Police, Tomas Yates, Louis Vitali, James P. Raykovitz, Robert Reilly, Justin Lanza, Derrick Watford, and Eric Turk (collectively, “Defendants”) to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is granted and Plaintiffs are given leave to amend Count III of their Complaint.

I. FACTUAL BACKGROUND

According to the facts set forth in the Complaint, Plaintiffs Steve Luongo's Towing, Inc. (“Luongo Towing”) and Stephen Luongo (“Luongo”) (collectively, “Plaintiffs”) are in the towing, storage, and salvage business, which includes removal, recovery, and transportation of damaged or disabled vehicles. (Compl. ¶ 14.) Plaintiffs are also in the automobile repair and service business, and Luongo Towing is a Pennsylvania State Inspection authorized station. (Id. ¶ 15.) Plaintiffs operate two “tow yards” located with Delaware County, as well as a fully-licensed automotive repair shop. (Id. ¶ 16.)

As part of the Pennsylvania State Police's (“PSP”'s) emergency response and law enforcement duties, the PSP retains third-party, private towing companies to provide emergency towing and salvage services. (Id. ¶ 17.) The PSP maintains a list of approved towing and salvage service providers (the “PSP Approved List”) and only providers who are approved by the PSP are eligible to respond to a PSP request. (Id. ¶ 18.) In order to become an approved provider, a towing company must, among other things, submit an application to the PSP that meets certain PSP criteria, and pass an inspection conducted by a PSP representative. (Id. ¶ 19.) Once a towing company's application is approved, that company must comply with certain regulations on an ongoing basis in order to remain an approved provider. (Id. ¶ 20.) Luongo Towing is on the PSP Approved List, and has provided towing services to the PSP for over thirty years, and salvage services to the PSP for approximately twenty years. (Id. ¶ 21.) A significant portion of Plaintiffs' business is, has been, and continues to be derived from retention by the PSP to provide towing and salvage services. (Id. ¶ 22.)

From July 26, 2013 to November 19, 2013, however, Plaintiffs were suspended from providing towing and salvage services to the PSP, allegedly in retaliation for Plaintiffs' submission of a complaint regarding the improper conduct of certain PSP troopers. (Id. ¶ 23.) Specifically, on April 18, 2012, Luongo submitted a detailed complaint to the local PSP office to be submitted to the Pennsylvania State Police Internal Affairs Division (the “IAD Complaint”). (Id. ¶ 24.) The IAD Complaint reported the fact that Trooper Thomas Yates had utilized Plaintiffs' automotive repair services, but refused to pay for such services and became hostile when pressed for payment. (Id. ¶ 26.) Thereafter, Plaintiffs were advised that, whileTrooper Yates and Trooper Louis Vitali were at a vehicle fraud conference, Trooper Vitali was overheard to say to Trooper Yates, “this is how we can f**k Luongo.” (Id. ¶ 27.) Trooper Yates then appeared at the Aston Township, Delaware County Police Department, apparently posing as Trooper Vitali, and asserted to Aston Police personnel that the PSP was changing certain policies so as to have a negative effect on Plaintiffs' business and that the Aston Police should do the same. (Id. ¶ 28.) Yates's conduct allegedly led to the Aston Chief of Police Daniel Ruggieri sending a letter to the Pennsylvania State Police Bureau of Integrity and Professional Standards, Internal Affairs Division, stating, among other things, that “during the past 2 years Mr. Luongo has provided exemplary service to our community [and] I'm outraged that Trooper Yates attempted to circumvent the chain of command by going to Sgt. Osborn in [an] effort to persuade him to change our towing procedure which was put in place by my office.” (Id. ¶ 29.)

In addition to the above, various other instances of harassment by Troopers Yates and Vitali against Plaintiffs were detailed in the IAD Complaint. (Id. ¶ 30.) Nonetheless, on June 11, 2012, Captain Timothy McDonald of the PSP responded to the IAD Complaint stating, “I am unable to sustain your allegations [that] Troopers [Yates and Vitali] have conspired to interfere with your business activities” and “while it is clear that Trooper Yates owes you some amount of money...this was an informal transaction between you and Thomas Yates and...the amount owed is in dispute.” (Id. ¶ 31.) Captain McDonald indicated that no further administrative action would be taken by the PSP in regard to the IAD Complaint. (Id. ¶ 32.)

Around June 2013, Defendants Trooper Justin Lanza and Corporal Derrick Watford of the Philadelphia Fraud Unit of the PSP conducted an investigation of Plaintiffs' operation at both locations. (Id. ¶ 33.) Plaintiffs allege that the investigation was ordered by Sergeant Robert Reilly. (Id. ¶ 34.) Although Plaintiffs claim to have been in complete compliance with all applicable regulations at the time, the PSP asserted, based on its investigation, that Plaintiffs were not in full compliance. (Id. ¶¶ 35–36.) Via two letters issued on July 26, 2013, the PSP advised Mr. Luongo that he and Luongo Towing were being suspended from the PSP Approved List for 180 days. (Id. ¶ 37.) As to the Parkmount location, the letter indicated that the suspension was based upon an alleged failure to maintain a secure lot and to update fee schedules with the State Police. (Id. ¶ 40.) As to the Brooke Street location, the letter stated that the suspension was based on a failure to have a secure lot and update the fee schedule with the PSP, but also on the fact that Plaintiffs “knowingly failed to keep a currently registered emergency towing vehicle at the location.” (Id. ¶ 39.) Plaintiffs allege, upon information and belief, that Defendant Captain James Raykovitz ordered the suspension. (Id. ¶ 38.)

Plaintiffs assert that none of the purported violations were a valid basis for suspension, which was imposed to punish and harass Plaintiffs in retaliation for submission of the IAD Complaint. (Id. ¶ 41.) Plaintiffs contend that the lots at both the Brooke Street and Parkmount locations were secure and had been regularly inspected by the PSP and approved for many years. (Id. ¶ 42.) Nothing about the security of Plaintiffs' lots had changed since the time of the submission of the IAD Complaint. (Id. ¶ 43.) In addition, Plaintiffs note that while they maintain a fleet of emergency towing vehicles at the Brooke Street location, they all happened to be actively out on towing calls at the time of the inspection. (Id. ¶ 44.) Finally, there was purportedly no provision of the PSP field regulations or other governing regulations that requires a towing company to update fee schedules with the PSP, and Plaintiffs assert that their fee schedules at both locations were appropriate and in conformity with all industry standards. (Id. ¶ 45.)

As a result of the suspension, Plaintiffs retained an attorney in order to seek reinstatement. (Id. ¶ 47.) Plaintiffs commenced an action seeking injunctive and permanent relief with the Court of Common Pleas of Delaware County, styled Steve Luongo's Towing Inc. v. Pennsylvania State Police, Troop K , docketed at Civil Action Number 13-7414. (Id. ¶ 48.) Through their attorney, Plaintiffs negotiated at length with the PSP for reinstatement, were forced to reapply for approval for reinstatement, and were required to comply with regulations that allegedly were not applied to Plaintiffs' competitors. (Id. ¶ 50.)

Meanwhile, the alleged harassment continued, including an instance on September 20, 2013, in which Trooper Vitali appeared on the Luongo Towing yard and threatened to arrest Mr. Luongo unless Mr. Luongo permitted an individual to retrieve items from a vehicle that had been impounded at the request of Aston Police and was being stored on the Luongo Towing lot. (Id. ¶ 51.) Trooper Vitali further forced Mr. Luongo to move the impounded vehicle for the putative owner for free under threat of arrest, despite the fact that performing such vehicle-moving is usually done for a fee. (Id. ¶ 52.) Finally, after 115 days of suspension, and the expenditure of significant sums of money, Plaintiffs were reinstated to the PSP Approved List, as confirmed through two letters from Lieutenant Eric Turk, each dated November 19, 2013, advising that both of Plaintiff's locations, Brooke Street and Parkmount, were again deemed approved providers. (Id. ¶ 54.)

On July 23, 2015, Plaintiffs initiated the present action setting forth three causes of action as follows: (1) violation of First Amendment speech rights under 42 U.S.C. §§ 1983 & 1988; (2) violation of Fourteenth Amendment right to due process under 42 U.S.C. §§ 1983 & 1988; and (3) violation of the Fourteenth Amendment right to be free from unreasonable search and seizure under 42 U.S.C. §§ 1983 & 1988. Defendants filed the current Motion to Dismiss on September 12, 2015. Plaintiffs responded on October 19, 2015, and Defendants filed a Reply Brief on October 22, 2015, making the Motion ripe for judicial consideration.¹

II. STANDARD OF REVIEW²

Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6) ; see also Hedges v. United States , 404...